R v Auriol Grey

Unlawful act manslaughter requires proof of every element of the underlying criminal offence. It is insufficient to prove conduct that contributed to a death and appeared hostile or generally unlawful. Where common assault is relied on, the prosecution must prove conduct causing the deceased to apprehend immediate unlawful force and an intentional or reckless threat. Recklessness requires actual awareness of the risk, taking that risk, and its unreasonableness in the circumstances known to the defendant. A jury must receive directions on those elements. Directions on accident and self-defence cannot substitute for them. A conviction is unsafe where the jury were not asked to determine the base offence or where the evidence could not establish it.

After a retrial in the Crown Court at Cambridge sitting at Peterborough, Auriol Grey was convicted of unlawful act manslaughter arising from a cyclist’s fall into the road after Grey gesticulated and shouted at her. She was sentenced to three years’ imprisonment.

The prosecution accepted on appeal that physical contact could not be proved, leaving common assault as the only possible base offence. The appeal concerned the failure to identify and direct the jury on that offence, including its actus reus and mens rea, and whether directions on accident, self-defence and risk of harm could sustain the conviction.

Appeal allowed. The manslaughter conviction was unsafe and was quashed.

1. Base offence. Unlawful act manslaughter requires proof that the defendant committed an unlawful act which was itself a crime, together with all the elements of that crime. The court considered the formulation in R v Goodfellow (1986) 83 Cr. App. R. 23, followed the principle confirmed in R v Kennedy (No 2) [2007] UKHL 38, and applied the reasoning in R v Lamb [1967] 2 Q.B. 981.
2. Common assault. As physical contact could not be proved, battery was unavailable. Common assault was the only possible base offence. Its conduct element required proof that the appellant’s conduct caused Mrs Ward to apprehend the immediate unlawful infliction of force. Its mental element required an intentional or reckless threat of force.
3. Recklessness. The prosecution had to prove that the appellant was actually aware of the risk that Mrs Ward would apprehend immediate unlawful violence, nevertheless took that risk, and did so unreasonably in the circumstances known to her. The appellant’s cognition, disabilities and perception of events would have required careful consideration.
4. Jury directions. The jury received no directions on the actus reus or mens rea of common assault. Directions on accident and self-defence did not invite consideration of those elements. The direction that rejection of self-defence meant that unlawful force had been used was itself a misdirection. The court could not infer that the jury had answered questions which were never posed.
5. Application. The prosecution case, taken at its highest, established only that Mrs Ward may have apprehended a blow. That possibility was insufficient. The evidence did not provide a proper basis for the jury to be sure that common assault had been committed. The resulting conviction therefore had to be quashed.

1. Court of Appeal (Criminal Division): [2024] EWCA Crim 487. The appeal against conviction was allowed and the conviction was quashed.
2. Crown Court at Cambridge sitting at Peterborough: Following a retrial, the appellant was convicted of manslaughter and sentenced to three years’ imprisonment. Leave to appeal against sentence was refused on 19 May 2023. Extension of time and leave to appeal against conviction were granted on 19 March 2024.